INTERNATIONAL PROPAGANDA AND MINIMUMWORLD PUBLIC ORDER

WiLIAM V. O'BimN*

INTRODUCTION

The author's original mandate was to prepare "A Case for Unlimited Propa-ganda," to oppose "A Case for Controlled Propaganda" in a "debate" with Professorvon Glahn. However, the author found it impossible to reconcile a case for un-limited propaganda with existing international law and responsible foreign policies.This paper will not support unlimited propaganda because it is impossible to recon-cile such a concept with existing international legal obligations binding on all states.Nor will it attempt to make a case for maximum freedom of international propa-ganda based on some theory of the desirability of a competition of ideas from whichgreater truth and understanding might result. Likewise eschewed in this paper isany notion of "just" propaganda which, in virtue of some higher rights, should pre-vail over the ordinary positive international law. Rather it will be the author's con-tention that meaningful legal regulation of international propaganda is so difficultat best and so inconceivable in the present divided world, that international law is notwell served by encouraging the belief among its supporters that substantial progressin this problem area is imminent. On the other hand, it will be argued that thereare normative imperatives and practical necessities for directing the attention ofstatesmen to their responsibilities and opportunities to contribute to patterns ofbehavior leading to greater international legal control of propaganda.

This position will be substantiated, first, by an appraisal of existing internationallaw relevant to international propaganda and, second, by a brief summary of the basicobstacles to more successful enforcement of the existing law and to the developmentof additional law. In the discussion which follows stress will be placed upon theview that "the international law of propaganda" is most profitably treated not as aseparate chapter of law but in the context of broader factual and legal categories.

First, as a phenomenon of international politics, propaganda will be treated as apart of McDougal's "ideological instrument" which, together with the diplomatic,economic, and military instruments constitute the principal means utilized in inter-national politics.' The ideological instrument has been defined as follows:

* B.S. (Foreign Service) 1946, M.S. (Foreign Service) 1948, Ph.D. 1953, Georgetown University;special student, 1954-56, Georgetown University Law School. Visiting Research Professor, 1963, MaxPlanck-Institut fir Ausliindisches Wffentliches Recht und V6lkerrecht. Professor of Government andChairman of the Institute of World Polity, Georgetown University. Co-author [with Walter H. E. Jaeger],INTErNATONAL LAW, CASES, TExr-NoTEs, AND OTHR MATERIALS (958). Editor, World Polity.

1M.,Es S. McDouGAL & F. P. FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER 27-36 (x96i).

LAW AND CONTEMPORARY PROBLEMS

The use of the ideological instrument commonly involves the selective manipula-tion and circulation of symbols, verbal or nonverbal, calculated to alter the patternsof identifications, demands, and expectations of mass audiences in the target-stateand thereby to induce or stimulate politically significant attitudes and behaviorfavorable to the initiator-state. It includes, in combination with other instruments,all the techniques of propaganda, infiltration, subversion, and coup d'3tat whichhave been refined and developed to such high efficiency as to have given rise torepeated proposals to condemn their use for certain objectives as a distinct form ormode of aggression.2

It is believed that both the differentiation of instruments within the over-allarsenal of instruments of foreign policy and the identification of the use of propa-

ganda as an integral element within the broader concept of the ideological instrumentproperly indicate the importance and complexity of efforts to bring propaganda under

international legal regulation.

Second, as a subject treated by international law, propaganda falls within the fol-

lowing categories:

(i) the law regulating the threat or use of force;(2) the law governing dictatorial intervention (to the extent that such intervention

does not fall within the first category);

(3) the law of international responsibility for acts injurious to sovereign statesoriginating with another state's jurisdiction; and

(4) the corpus of positive legal obligations to promote world law, order, and

justice.

It is believed that existing functional international law relating to various means

of spreading propaganda-international communications law, for example-is most

usefully treated within the foregoing categories. It is artificial and comparatively

irrelevant to isolate the subject matter in primarily functional legal categories.

I

EXISTING LEGAL LIMITATIONS ON INTERNATIONAL PROPAGANDA

There is no dearth of legal limitations on international propaganda. The hard

questions concern their meaning and their effectiveness. First, use of propaganda as

part of the ideological instrument is limited by the prohibition against the threat

or use of force embodied in article 11 (4) of the U.N. Charter and supported by an

overwhelming consensus expressed in legal documents since the time of the League

Covenant. Determination that use of warmongering propaganda violates the pre-

scription prohibiting the threat or use of force against the territorial integrity and

political independence of a state will presumably be made in the broader context of a

Id. at 29.3For a definition and discussion, see JoHN B. Wrrror; & A-THUR LARSoN, PROPAGANDA TOWARDS

DIsAi ENT IN THE WAR oN WoRDs IO, 62-82 (1964).

PROPAGANDA AND MINIMUM WORLD PUBLIC ORDER 591

finding that some of the other instruments--diplomatic, economic, military-are alsobeing used in a coordinated pattern of aggression. This brings us to one of the central

and seemingly insoluble problems of international law. Two things, however, areclear:

First, the illegality of aggressive recourse to force in violation of article H (4)is established beyond dispute. So great is the consensus on this point that it

remains the foundation for the existing minimum world public order despite all

violations of that order.Second, the definition of aggression has thus far not been the product of the

application of formulae systematically arrived at in advance by authoritative

decision-makers. Rather, aggression has been defined case by case, primarilythrough the process of claims and counterclaims predominantly by national entities

interacting either bilaterally or through the processes of international organiza-

tions. Efforts at more systematic and generally acceptable definitions of aggres-

sion have, notoriously, been thwarted by, among other things, ideological andpolitical differences and the reluctance of states to agree in advance to definitionsof aggression which might restrict them inordinately to the detriment of theirvital interests 4

In these circumstances, it would seem that students of international law and

relations should now turn to detailed studies of some of these cases wherein there

was a substantial consensus that aggression occurred and that use of the ideological

instrument constituted an important component of the aggressive behavior-for

example, the struggles in the Middle East and Malaysia, and Castro's machinationsin Latin America. It would seem that "practice" in the sense of international agree-ments, resolutions, voeux, unilateral declarations, and the like, as it relates to the

problem of international propaganda has been substantially collected and analyzed by

Professors Whitton and Larson.5 What they have done in essence is to collect all of

the more formal evidences of states' practice on this subject much in the way that

Brownlie has surveyed this kind of practice with respect to the broader law regulating

resort to force.' What appears to be needed now is a closer and deeper look at that

more subtle "practice," the patterns of actual behavior emerging from the interna-tional political process.

Next we must turn to the problem of indirect aggression, a necessarily vague

category which straddles the line between the law regulating recourse to armed

coercion and the law relating to essentially nonmilitary dictatorial intervention.

The ideological instrument usually assumes commanding importance in indirect

'McDOUGAL & FELICIANO, op. cit. supra note I, at 61-62; see generally Jm.sus STONE, AGGRESSION AND

WoRLD ORDER (1958).1 WmTToN & LARSON, op. cit. supra note 3 [hereinafter cited as WHITTON & LARsoN].' IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES (1963).

592 LAw AN CONTEMPORARY PROBLEMS

aggression. Indirect aggression is so termed because of ambiguity as to the relation-ship of the alleged indirect aggressor to attacks by primarily nonmilitary or sub-conventional military means against the territorial integrity and political independenceof another state and because of uncertainty as to whether the means employed, evenif they are traceable to the alleged indirect aggressor, constitute "the threat or use offorce." Despite obvious problems of definition and interpretation, it is clear thatinternational law presently recognizes and prohibits indirect aggression. It is equallyclear that subversive propaganda falls within this prohibition. Subversive propagandamay therefore constitute an important element in the crime of indirect aggressionand contribute to a state of affairs warranting enforcement action by the UnitedNations or, more likely, measures of individual and collective self-defense. Followingthe logic of the concept of self-defense, a victim of indirect aggression would havethe right if it so desired to engage in otherwise prohibited propaganda against theindirect aggressor 7

As in the determination that aggression has occurred, judgments about the pro-priety of self-defense measures against alleged indirect aggression are usually madeon a case-by-case basis through the decentralized process of claims and counterclaimsby interested international persons. If more universal sources such as resolutionsin the U.N. or at regional conferences are persuasive authority that there is a crimeof indirect aggression, they are generally not too helpful in determining the contentin specific instances of the prohibited act. It again appears to be necessary to studythe evolving law on this subject through the collection and analysis of cases aboutwhich interested parties and third parties have expressed an opinion. From suchstudies guidelines for the evaluation of allegedly subversive propaganda and ofcountermeasures of self-defense may emerge. Our experience with efforts to define"aggression," "indirect aggression," and "intervention" suggests that this approachmay be more useful than that of attempting scientific codification of prescriptionsregulating indirect aggression generally and the international propaganda componentsthereof.

Moving down the spectrum of international coercive measures as viewed from alegal perspective, we come next to impermissible dictatorial intervention not amount-ing to "the threat or use of force." The general principle of international law pro-hibiting dictatorial intervention, reinforced by general and particular conventionalinternational law, as well as customary international law, prohibits dictatorial inter-ference in the internal or external affairs of a state even when such interference doesnot amount to the use or threat of force. A great part, perhaps the bulk, of interna-tional propaganda of a patently unfriendly character falls into this category.

Legal regulation of propaganda of this kind presents a problem which thus far7 On indirect aggression, see PAUL W. BLACESTOCK, STRATEGY OF SUBVERSION (1964); MANUEL R.

GtRCiA-MoRA, INTERNATIONAL RESPONSIBILITY FOR HOSTILE AcTs OF PRIVATE PERSONS AGAINST FOREIGN

STATES (1962); I DANIEL P. O'CoNNELL, INTERNATIONAL LAW 328-31 (1965).

PROPAGANDA AND MINIMUM WORLD PUBLIC ORDER 593

has baffled international lawyers and statesmen. To an even greater extent thanin the case of the law regulating recourse to force, the universal agreement thatdictatorial intervention is illegal is vitiated by the problems of defining this delictand of providing remedies for victims of illegal intervention.8 What little reliefis available to victims of illegal intervention seems generally to be of a politicalzather than a legal character. The conviction that this is true leaves the author veryskeptical about the practical importance of the various ingenious suggestions ofProfessors Whitton and Larson and others concerning the identification and legalcondemnation of technically illegal international propaganda.9

Closely related to the foregoing is the general international law of internationalresponsibility. It is clear that all states have an obligation to prevent the commissionof acts within their jurisdictions which endanger the territorial integrity and politicalindependence of sovereign states with which they are at peace. The rule goes farin its requirements for responsibility for private as well as public acts originating inits jurisdiction. A particularly well-established corollary of this rule requires sup-pression of, and responsibility for, revolutionary expeditions and so-called terroristplots and activities aimed at another state. Given the well-known importance ofpropaganda in modern international relations, it is as illegal for a state to condone orencourage warmongering, subversive, and, in some cases, defamatory propagandaagainst another state as to contribute bases and materiel to an aggressive invader.Having said this, however, we must face the same problems of enforcement alreadymentioned. Responsibility for delictual propaganda is clear; practical remedies mustdepend upon the more or less fortuitous functioning of international organization andthe possibilities for permissible measures of self-help.

Moreover, the rifts and confficts of our era have notoriously eroded the traditionalconcepts of "peace" and "friendly" relations. The facts of the several existing coldwars collide head-on with the underlying assumptions and goals of the traditionallaw of international responsibility. For this reason and in view of the difficulties ofobtaining enforcement of the law regulating international conflict and intervention,this paper will not examine in detail the functional law relating to internationalcommunications and other subjects touching international propaganda which are wellset forth by Professors Whitton and Larson in their book and in their contributions tothis volume. °

Last, we must acknowledge that in addition to the prescriptions limiting the useof propaganda as part of delictual recourse to force or dictatorial intervention thereare equally important obligations on all nations to promote the goals of peace,

' Burke, Legal Regulation of Minor Coercion, in EssAYs IN INTERVENTION 97 (Stanger ed. 1964).ITnoN & LARsON 183-273.

"0 Larson, The Present Status of Propaganda in International Law, pp. 439-51 supra; Whitton, TheProblem of Curbing International Propaganda, pp. 6oi-2i infra.

LAw AND CONTEMPORARY PROBLEMS

cooperation, pacific settlement of disputes, international economic and social justice,

and disarmament. These obligations both reinforce the prescriptions against war-mongering, subversive, and defamatory propaganda and oblige states to make positive

contributions to the realization of these goals through, inter alia, the propagandapolicies they pursue.11

In summary, therefore, no state or individual purporting to respect internationallaw could contend that there is an unlimited right to engage in international propa-ganda. It should be emphasized that this in itself is a sign of progress. The samestatement could not have been made with equal confidence in, say, x914. In any

event, the issue is not whether international law should regulate propaganda but how.

One's answer naturally is determined by one's picture of the international law-makingprocess. Some international law writers, confronted with the widespread violationof the norms summarized above, see the problem as one of codification and develop-ment of relevant rules and legal institutions. Without discounting the importanceof such efforts, it is the contention of this paper that the more realistic and ultimately

more fruitful approach to the problem is to proceed in the following manner:

(i) study the claims, counterclaims, and third-party judgments of controversialinstances of recourse to propaganda as part of the ideological instrument;

(2) seek points of consensus, however modest, with respect to the customarylaw relevant to international propaganda and the ideological instrument;

(3) study the degree of effectiveness of controversial uses of the ideologicalinstrument in order to determine forms or circumstances of its use that appear tohave been ineffectual or disproportionately mischievous and hence the more in-defensible in that they involved violation of the law without a commensurateselfish gain. It is always useful to buttress arguments based on normativeobligation with utilitarian arguments of self-interest and there is reason tobelieve that, in the tricky field of propaganda, law and self-interest properlyperceived may be much closer than proponents of dubious forms of psychologicalwarfare would have us believe 12

(4) seek to convince decision-makers that their policies concerning the use ofthe ideological instrument should be based, first, on an awareness of their legalobligations and their opportunity to contribute to the development of interna-tional law rather than on their knowledge that sanctions underlying the lawrelating to propaganda are virtually nonexistent and that violations of the lawcan be expected to continue. Second, proponents of international law shouldseek to persuade decision-makers that there are grave dangers in irresponsiblerecourse to the ideological instrument and positive benefits in responsible policieswith regard to propaganda.11 See U.N. CunTER arts. i, 2, for the fundamental basis for these international obligations.12 See BLAcs.srocK, op. tit. supra note 7.

PROPAGANDA AND MINIMUM WORLD PUBLIC ORDER 595

To the extent that such efforts are successful in nations such as the United States,international practice tending to produce customary international law will improve.To the extent that such practice may educate other states which presently indulgein unlimited propaganda and, possibly, induce more responsible behavior, thebasis may be laid for more systematic efforts for codification and development ofrules and institutions for control of international propaganda. As indicated at theoutset, however, it is believed that the prospects for meaningful progress in this

field are modest and that a very conservative attitude should be taken in appraisingthe scope and effectiveness of universal and even regional international law as itbears upon the problem of international propaganda. Let us, then, examine someof the reasons which support this conservative analysis.

II

OBSTACLES To THE DEVELOPMNT OF MEANINGFUL INTERNATIONAL

LEGAL REGULATION OF INTERNATIONAL PROPAGANDA

The most fundamental obstacle to regulation of international propaganda resultsfrom philosophic-ideological rifts which divide the world. Men differ profoundly

on the definition of ultimate reality and, consequently, on the interpretation of human

events. Granted that the problems of international propaganda relate as much to its

effects as to its truthfulness, truthfulness is still the starting point in any evaluationof propaganda. But we know that there exist a number of fundamentally different

approaches to the quest for ultimate truth. Two have particularly influenced con-

temporary history, the Judaeo-Christian and the Marxist-Leninist worldviews. As

we know, these differences are far from academic since they influence the thoughts

and actions of governing elites and substantial portions of the citizenry in the world's

major powers. If we add the factor of missionary zeal which is present in both

camps we have a situation that would seem to defy efforts to obtain global con-

sensus on regulation of propaganda which is vital to the propagation of each side's

version of "truth."

For example, even if we remove the traditional communist words of scorn (for

examples, "feudal oppression," "exploiters," "warlords," and "lackeys") from the

communist propaganda attacks quoted by Professors Whitton and Larson, 13 the

underlying core of the message is "true" when viewed from a communist perspective.

To predict the collapse of the present political system in Iran would appear, from

a Marxist-Leninist viewpoint, to be as scientific and objective as a prediction by a

psychiatrist that an individual was destined for mental illness. On the other hand,

one need not be a Kremlinologist or Pekinologist to predict that conspicuous repre-

sentatives of the Judaeo-Christian worldview will probably not fare very well under

Marxist-Leninist regimes and that serious threats to their lives, property, and human

11 WnirroN & LAR ON 91-92.

LAW AND CONTEMPORARY PROBLEMS

rights are a distinct possibility. Propaganda reflecting this point of view is certainly"true," but it may also be "warmongering," "subversive," or "defamatory." Thesame can be said of Western propaganda of a positive kind which asserts that mancan only prosper in societies that conform to God's law-or perhaps to the secularprinciples of a free society.

At this point, of course, the proponents of control of international propagandaturn to their municipal law analogies of libel, slander, treason, and the like andremind us that such limitations on free expression arise not solely or even primarilyout of a concern for truth but out of the need to suppress breaches of the publicorder that may result from the exercise of the right of expression. Thus the truth-fulness of a statement may not redeem its antisocial or illegal effects. We might thenconclude that, drawing by analogy from this concept, states holding different viewsabout the meaning of "truth" should restrain themselves from expressing these viewsin ways that patently disturb the world public order.14

The difficulty here is that these fundamentally different views of reality dividenations in their attitudes toward the world public order. The law-makers andacquiescing citizens who decide that in certain circumstances the national public orderis a higher value than freedom of expression obviously agree substantially that theexisting order is desirable and worth protecting. Do we have anything like thisconsensus with respect to the world public order? Most authorities seem to think not.Increasingly we encounter expressions such as "the law of minimum world publicorder"' 5 or "the international law of coexistence" which is contrasted with "'universal'and 'regional' law of cooperation."'"

The well-known conclusion that such modern authorities reach is that, despitethe obstacles to a true world public order, a minimum world public order can and infact does exist. It is based, in effect, on a tacit agreement to disagree but to avoidexpressing the disagreement in ways that would be disadvantageous if not ruinousfor all. This means in practice that the form of the world public order and thecontent of universal international law is determined more or less pragmaticallyand often informally or tacitly rather than by systematic agreement from a basicconsensus. Consequently, the value attached to this minimum world public orderand to any particular rules relating to its maintenance tends to be variable. Whereasjudgments about the comparative value of a domestic public order and freedom ofexpression taking forms that threaten that order would presumably lead towardprotection of the domestic order, the same assumption cannot necessarily be madewith respect to the relationship between the world public order and internationalpropaganda.

It would appear, then, that the normative imperative requiring some limitation on24 Ibid.

'-5 McDouGAL & FELucuxo, op. cit. supra note i." WOLFAG G. FxiEmAN, THn CHANGING STRUCT'uRE OF INTERNATiONAL LAW (x964).

PROPAGANDA AND MINIMUM WORLD PUBLIC ORDER 597

international propaganda arises not from a consensus over what natural law thinkerscall "the international common good" but from the pragmatic necessities of co-existence in a dangerous world of conflict. Thus, propaganda that threatens to inciteWorld War III would be judged impermissible-indeed, criminal-by all responsiblemembers of the minimum world public order, whatever their ideological persuasion.But less dangerous propaganda which thwarted progress in arms control and dis-armament and pacific settlement of disputes might be considered permissible becauseits alleged truth and its ideological-political necessity outweighed the propagandists'concern for the minimum world public order.

A second obstacle to significant legal regulation of international propaganda arisesfrom the fact that the deep-rooted differences just discussed, along with other causes,produce persistent and widespread international conflict. Conflict and drasticchange are endemic to the contemporary world society and to most national societies.Separate from, even though often arising out of or influenced by, the fundamentalrifts just discussed, there is an ethos of change in most of the world. This ethosencourages "ends-justify-the-means" attitudes which have little or nothing in com-mon with the attitudes of law-makers and citizens in advanced legal orders whichplace sophisticated limitations on freedom of expression in the interests of the com-monweal.

The intermingling of political and ideological activity both within and betweenexisting states that characterizes our time clearly diminishes respect for publicorders at all levels-from local to national to global. The statesmen who developedrules of international law prohibiting hostile acts originating within a state's juris-diction and having effect within the jurisdiction of a friendly power were contentwith their own public order and sufficiently content with the public orders of mostof the other states so that they could support a norm that valued order and stabilityover violent change. Mutual respect, protection of vital interests, and noninterventionwere the rule in that world. Thus the British representatives at the Alabama ClaimsArbitration came to see that a mischievous source of revolutionary change ought tobe discouraged by a rule prohibiting even tacit encouragement of support to thosein rebellion against a friendly power.17

But the revolutionary elite that establishes a new state or takes over an oldone is generally not at all disposed to respect the rights of other, quite differentlyorganized and oriented, public orders. Indeed, such revolutionaries often fear, detest,and seek to destroy their neighbors' public orders. In any event, for these revolu-tionary elites order, stability, and mutual respect of sovereigns are all values that aresubordinate to the highest of all values, rapid and decisive change. Since propa-ganda is the most important and most available instrument of such elites there is

" ThoMS A. BAILEY, A DIPLOMATIC HISTORy OF THE AMERICAN PEOPLE 409 (5th ed. 1955); PERCY

E. CORBETr, LAw IN DIPLOMACY 153 (I959).

598 LAW AND CONTEMPORARY PROBLEMS

(from their standpoint) both a normative and practical right and duty to use propa-ganda in their assaults on "unjust" public orders-local, national, regional, global.

In addition to these fundamental forces working against respect for order in our

age, there is the resultant impact of psychological and sociological characteristics of

individuals and groups which bring about conffict and change. Attitudes and

habits of expression and behavior are developed which are shocking to the supportersof the status quo. Thus, as we view the attitudes, language, and tactics of various

advocates for change in American society we are not encouraged to believe that theworld community is ready for an early return to a public order based on mutualrespect and good manners. Nor are we likely to find more genuine enthusiasm forlegal restraints on propaganda than exists within domestic activist groups for stricterrules regulating strikes, sit-ins, boycotts, and demonstrations in defiance of publicorder.

There are, then, in the new or transformed nations, many elites-some enjoyingstrong popular support-who believe that they have an unlimited right to lash outagainst all that they see as wrong in the world. They further assume the necessityand rectitude of preserving their own systems and of advancing their political in-terests and ideological causes through the use of the ideological instrument, theirstrongest instrument of foreign policy.

INTERNATIONAL LAW RELATING TO INTERNATIONAL PROPAGANDA

AND ri PRACTICE OF STATES

In the light of the foregoing considerations it is not surprising that, despite wide-spread adhesion to conventions explicitly or implicitly condemning warmongering,subversive, and defamatory propaganda,"" despite extensive formal and informaldiscussions of the problems some of which have produced draft conventions andcodes on the subject, 9 and despite the tremendous volume of charges and protestswhich specifically acknowledge the relevant legal prescriptions and apply them tothe policies of other states, 20 all states appear to engage in propaganda activities which

could be termed legally impermissible. To the extent that it is normatively binding,international law ultimately rests upon a feeling of obligation on the part of its

subjects to obey it. Or, to use McDougal's formulation, international law rests upon

" See, e.g., the International Convention Concerning the Use of Broadcasting in the Cause of Peace,

Sept. 23, 1936, 186 L.N.T.S. 3o(H) (1936) (effective April 2, 1938), 32 AM. J. INT'L L. Supp. 113

(1938)." See, e.g., Draft Code of Offences Against the Peace and Security of Mankind, adopted by the Inter-

national Law Commission in 195r, U.N. Doc. No. A/1858, A/CN.4/ 4 8, ch. 4, 45 Amt. J. INT'L L. Supp.123, 128 [arts. 2(5), 2(6)]; Draft Convention on Freedom of Information, U.N. OFFIcE OF PonLIC IN-FoEmA-oN, EvEnvrm's UNrrED NATIoNs x85 9. (U.N. Pub. Sales No. 1952.J.9), and Draft Conventionon the International Right of Correction, 5952 U.N. YEARBooK 463-65 (U.N. Pub. Sales No. 19531.30.

1o See WmrroTN & LAE5oe x2-x8o passim; Whitton, Propaganda and International Law, 72 HtaOUREcInL 545-59 (948); 1 O'CONNELL, Op. cit. supra note 7, at 329-31.

PROPAGANDA AND MINIMUM WORLD PUBLIC ORDER

the "expectations" of authoritative decision-makers about the behavior of states thatpurport to be acting legally.2 1 As one deduces obvious corollaries concerning interna-tional propaganda from relevant functional international law, from the law regu-lating recourse to force, dictatorial intervention, and international responsibility, andfrom the law enjoining states to support world public order, what are one's expecta-tions ?

It is submitted that expectations are, first, for only intermittent, variable andmarginal observance of these legal prescriptions. But, perhaps more important,one anticipates that the states as they violate these norms do not appear to be consciousof doing wrong. In many instances, on the contrary, states manifestly engage intechnically illegal propaganda with a feeling of rectitude ranging from a convictionthat they have a right to disseminate their propaganda to the belief that they havea duty to do so in the interests of mankind as well as for their own interests. Untilthis kind of attitude is altered it would seem impossible successfully to deal with theproblems of international legal regulation of propaganda.

There is a further aspect of this problem, moreover, that is more difficult to prove.One wonders whether, notwithstanding the repeated acknowledgments in thiscentury of the potency and dangers of international propaganda (so well cataloguedin Professors Whitton and Larson22), the widespread tendency to ignore prescriptionslimiting propaganda may result in part from a failure of statesmen to take the prob-lem seriously. Have the words that statesmen have uttered, written, and endorsedwith binding adhesions really penetrated their consciences so as to have effect whenthose statesmen make their policy decisions? Does the very subtlety of propaganda asa means of coercion result in its use without the kind of crisis of conscience whichpresumably would precede a decision to employ more direct forms of coercion, suchas the economic or military instruments of foreign policy?

Concern over this possible explanation for the gap between law and practicerelating to international propaganda is obviously particularly acute among those ofus whose hopes for the development of a minimum world public order rests morewith responsible decision-makers who contribute good examples and potentialprecedents than with drafters of codes and participants in international conventions.The point of hope is not the outraged victim for whom little remedy other thanretaliation in kind is presently available. Rather, hope for improved state practicein the matter of propaganda lies with potential senders of propaganda who must bemade aware of the importance and legal implications of the use that they make ofpropaganda. But the first requirement of this approach obviously is a clear recogni-tion by responsible decision-makers that there is both a practical and a legal problem.

At the risk of inviting charges of parochialism, it must be submitted at this point21 Se, e.g., McDougal, International Law, Power and Policy: A Contemporary Conception, 82 HAGun

REc tm I37, 170-71 (1958); McDouGAL & FELiCiAro, op. cit supra note i, at 45-49." WmrroN & LsoN 1-52.

6oo LAw AND CONTEMPORARY PROBLEMS

that United States decision-makers seem, on the whole, to have understood that thereis a problem. The protests of Americans who would have the United States takethe ideological offensive are a measure of the reluctance of this country to engagein propaganda that could be termed impermissible under international law. Yetthis is a never-ending problem, and a good record to date does not preclude thepossibility that a nation as sorely tested as the United States has been and will bemight be tempted to experiment with the potent and dangerous possibilities of legallyimpermissible propaganda. Those who advocate restraint in the use of the ideologicalinstrument, therefore, should constantiy urge upon their government the necessityof keeping this problem in mind and of dealing with it responsibly 3

For the problems of international propaganda will not, it is believed, be sub-stantially alleviated in the foreseeable future as a result of clearer definitions of crimes,rights, and duties or by new legal rules or ingenious attempts to provide sanctionsto enforce the old ones. The essence of the problem is that, on the one hand, theideological instrument is too valuable to contemporary international actors and toocomplex and that, on the other, community consensus is too lacking for the successfulemployment of sophisticated approaches borrowed from advanced legal orders.The path to progress-and it promises to be very, very slow-lies in studying therealities of our divided world and in seeing how they can be gradually influencedand alleviated by enlightened, generally unilateral, contributions to minimum worldpublic order in so far as international propaganda and the broader ideological in-strument are concerned.

" Two of the most persuasive conservative views on this subject are L. JoHN MntTmN, INTERNATIONALPROPAGANDA (1958), esp. 107-08, and Jusaus STONE, LEGAL CONTROLS OF INTERNATIONAL CONFLICT 3X8-23(1954).